OSWALD HICKSON, COLLIER & CO.
SOLICITORS
PAUL DAVIES TIMOTHY J. L, COX T.D. NICHOLAS N. J. SMITH MICHAEL HUDSON MILES TOMKINS DIANA H. CORNFORTH RICHARD A. SHILLITO RICHARD OSBORNE NICHOLAS G. ALWAY ANGELA M. GRIFFITHS JANE ANDERSON ROBERT OWEN
CONSULTANTS LOUISE HAYMAN RAYMOND MOUNTAIN
ASSOCIATE
NORMAN MACLEOD
ESSEX HOUSE
ESSEX STREET
STRAND
LONDON WC2R 3AQ
TELEPHONE O7t 836 8333 FAX (GROUPS 2 8c 3) O71 ZAO 2236 TELEX 22533 DX 2OO LONDON
CORRESPONDENTS IN
CANNES
PARIS
SAN FRANCISCO
Our ref:
NA/HW/4
9 January 1991
Arun M Chandran Esq 88 Honister Place Newton Aycliffe
CO DURHAMDL5 7DN
Dear Mr Chandran
Anthony Moore and Edward Henderson
Thank you for your letter of 29 December 1990.
You are quite right in saying that remarks made by a local councillor at a Council meeting are spoken on a privileged occasion provided that what they say is relevant to the matter in hand. The privilege is, as you also rightly say, defeated by malice which it is for a Plaintiff to prove. He must show that the Defendant was using the privileged occasion for an indirect motive not connected with the privilege. I believe that the dossier that you provided contained an excerpt from the case of Horrocks v Lowe in which the duty of elected representatives to speak out freely at such meetings was emphasised.
I say "believe" because my file on this matter is not immediately to hand. A bill of costs is currently in preparation by a Law Costs Draftsman and recovery of these costs will then be sought from Mr Henderson. Unfortunately the basis for recovery of costs is such that a successful party cannot expect to recover all costs actually incurred but only the bulk of them.
In any event I can confirm that Mr Henderson has withdrawn his case, he will have to pay a substantial amount by way of costs and that the dossier that you provided was indeed very helpful in that it provided considerable background information to the complaint against Mr Moore and was instrumental to our case.
THIS FIRM IS REGULATED BY THE LAW SOCIETY IN THE CONDUCT OF INVESTMENT BUSINESS
I have always considered Mr Henderson's action misconceived and as I have indicated the onus was on him to prove malice.
As soon as I have received my file back from the Costs Draftsman I shall be seeking instructions from Mr Farquhar to respond on Councillor Moore's behalf to the letter that Mr Henderson caused to be published in the Newton News. Suffice it to say for the moment that Councillor Moore has good reason to take issue with what Mr Henderson said.
Yours sincerely
Nicholas Alway
cc A Moore Esq
DRAFT
Our ref: NA/HW/9January 1991
The Editor
Newton News
Newton Press
St Cuthbert’s Way
Aycliffe Industrial Estate
Aycliffe
CO DURHAM
Dear Sir
Anthony Moore and Edward Henderson
We are the solicitors who acted for Councillor Tony Moore in the slander and libel action brought against him by Mr Edward Henderson, the former Chief Executive of the Aycliffe and Peterlee Development Corporation and subsequently the Managing Director of an independent consultancy business, following remarks Councillor Moore made at a meeting of the Environment Committee of the Great Aycliffe Town Council on 11 October 1988. The alleged libel was the report of his remarks in the Northern Evening Echo.
We have been instructed by Great Aycliffe Town Council to
comment on the letter from Mr Henderson that you published
on. Mr Henderson stated that what he
objected to was the implication that he had somehow been involved in underhand dealings in relation to the development in question. We feel that it ought to be stressed that this is the meaning attributed by Mr Henderson to the words Mr Moore used at the meeting. Throughout the action it was denied on behalf of Mr Moore that they actually bore that meaning. Mr Moore also relied on the defence of qualified privilege, the defence that affords protection on the grounds of public policy to statements made honestly and without any indirect or improper motive, on an occasion such as a Council meeting.
The action was commenced in November 1988. In January 1989 we, on behalf of Mr Moore, put forward a proposal which, had it been accepted, would have led to the action being withdrawn with no order as to costs against either party, on the basis that there would be an agreed exchange of letters between them. For his part Mr Moore was prepared to say that it had never been his intention to cast any slight on Mr Henderson's integrity, whilst making the point that he had been extremely upset when proceedings had been served on him in what he perceived as an attempt to stifle free speech. Councillors were elected to speak their minds freely and frankly on matters of local concern and as long as they did so honestly they ran no risk of liability for defamation of those whom they criticised. The proposals put forward by us on behalf of Mr Moore were rejected by Mr Henderson who demanded an apology and payment of his costs.
In his letter in the Newton News Mr Henderson states that, "In deciding to drop my action I accepted Mr Moore's assurance that he bore me no malice and that the remarks he made were not meant to be defamatory". It is a great pity, that being the case, that he did not agree to the proposals that we put to him in January 1989 but rather elected to pursue his action until November 1990 before finally abandoning it unconditionally.
On various occasions in the intervening period we suggested to Mr Henderson's solicitors that the action should be discontinued. When we wrote in December 1989 we mentioned that Mr Moore had recently suffered a heart attack and should not have this misconceived action hanging over his head.
Mr Henderson in his letter to the Newton News stated that it was as a result of Mr Moore's heart attack and as an act of compassion that he instructed his solicitors not to press ahead with the action. The action was not discontinued by him, however, until almost a year after his solicitors had been informed of Mr Moore's heart attack and only then after the Court, at our instigation, had given directions as to how the action was to progress. Mr Moore was prepared to defend his position in Court and wanted the matter resolved once and for all, particularly as Mr Henderson, in an effort to defeat the privilege claim, was now alleging that Mr Moore had been actuated by express malice and that his dominant motive had been to give vent to his personal spite and ill will towards the Plaintiff.
In his letter Mr Henderson stated that he was aware of Mr Moore's financial position and had been informed that there was no insurance company underwriting his defence. He suggested that the chances of his enforcing a judgment against Mr Moore were therefore negligible. This information certainly did not come from us and was in any event wrong as Mr Moore did in fact have the benefit of insurance.
The combined effect of the assertions made by Mr Henderson in his letter to the Newton News was to suggest that this was an action that Mr Henderson might have won and that Mr Moore, who he evidently still believed had slandered him, should be careful about what he said in future. If that is how he feels, then he should not have deprived the Court of the opportunity of deciding the issue. Our advice to Mr Moore was that he could expect to win theaction had it run its course. As it was, he can feel totally vindicated in his actions. He spoke his mind and defended his right to do so, whilst still being prepared to agree to a sensible resolution of the matter. Now Mr Henderson must pay our costs in a sum to be either agreed or determined by the Court.
Yours faithfully
OSWALD HICKSON. COLLIER & CO